It took the Security Council fourteen months to agree on the Tribunal's prosecutor. Though a surprising choice, Justice Richard Goldstone of South Africa became known as a miracle worker for his successful efforts in building the office of prosecutor and launching the first prosecutions.

Balkan Justice

Michael P. Scharf(Carolina Academic Press, 1997)

This article does not have permission of the copyright owner, but is being offered for comment, criticism and research under the "fair use" provisions of the Federal copyright laws.
Source: Court TV Casefiles (The American Lawyer is an affiliate publication of Court TV.) Copyright 1996 by American Lawyer Media, L.P.

Out of South Africa

Prosecutor Postponed Taking High Court Job in South Africa to Join Tribunal

William Horne, The American Lawyer:When news reports trickled out in late summer of 1992 that atrocities were being committed in the bitter struggle for control of the former Yugoslavia-- including mass rape, the eviction and killing of civilian populations as part of the Serbs' "ethnic cleansing" policy, and the creation of Nazi-like death camps where prisoners were tortured and often killed -- South African judge Richard Goldstone, now the tribunal's chief prosecutor, didn't have much time to dwell on the implications. Since 1991 Goldstone had been chairing an inquiry into the causes of violence in South Africa. "I had my hands full," he notes with a thin smile.

In fact, the Standing Commission of Inquiry regarding the Prevention of Public Violence and Intimidation, widely known as the Goldstone Commission, played a critical role in defusing the partisan political violence that had been unleashed as apartheid, itself the result of ethnic cleansing, began eroding in the late 1980s. By 1991 the violence -- with daily killings in South Africa's black townships, and a white minority increasingly fearful of the implications of majority rule -- threatened the transition to democracy that President F.W. DeKlerk was then struggling through.

Desperate to keep the country from deteriorating into chaos, DeKlerk and some two dozen political parties, including the two largest, Nelson
Mandela's African National Congress and the rival Inkatha Freedom Party,
signed a shaky peace accord in September 1991. Part of that accord included the creation of the commission to investigate violence, to be chaired by someone acceptable to all 19 parties. That someone turned out to be Goldstone, then a judge on the appellate division of the South African Supreme Court, the country's highest court at that time.

Goldstone had been quietly undermining apartheid policies since joining the bench in 1980. In a landmark 1982 ruling, for instance, he essentially gutted the notorious Group Areas Act, which had restricted blacks to living in violent black townships. It was a clever piece of work: He did not just overturn the act, which might well then have been reinstated by the white parliament. Instead, he ruled in a carefully constructed decision that police must weigh certain factors before they could evict an elderly Indian woman from her home in a white suburb, the most important being whether they could provide her with alternative shelter of similar quality. Since housing standards in the mixed race and black townships fell far below that in white areas, the woman stayed, and the act became a toothless relic of the fading apartheid era.

"His decision put an end to use of the criminal courts to evict pursuant to the Group Areas Act," says President Nelson Mandela's personal lawyer,
George Bizos of Johannesburg. Goldstone hadn't always been so strongly
antiapartheid. His father owned two musical instrument stores, and Goldstone says that he grew up comfortably in an upper-middle-class Jewish household in a white suburb of Johannesburg, blithely unaware of what he now refers to as the "immorality and inhumanity" of apartheid. "For my first eighteen years I'd never met any blacks other than as subordinates, servants in our home and other people's homes," he confesses.

Goldstone's eyes were abruptly unblinkered when he attended a mixed-race school, the University of Witwatersrand, in 1957. "It became apparent to me immediately that when [my black classmates and I] were at school we were equals, but as soon as we left the grounds, blacks were treated as second-or third-class citizens," he says. In 1960, the year Goldstone was elected president of the student council, the government attempted to segregate universities. Goldstone and others protested vociferously, making public speeches and leading marches against the proposed measure, which failed. Goldstone says that was the last time he was involved in political activities.

Goldstone became a barrister in the then-bifurcated bar in 1963. From 1963 to 1980 Goldstone -- who, according to colleagues, was very ambitious and a hard worker -- built what fellow lawyer Bizos describes as "a large and successful" commercial and intellectual property practice in Johannesburg. In 1977, at the age of 38, he became one of the youngest members of the bar to "take silk," the expression for achieving the highest level of barrister. He was not involved at all during that period, he concedes, in the struggle for democracy and against apartheid.

That all changed when he was appointed to the Transvaal Supreme Court in 1980 at the age of 42 -- one of the youngest barristers to be sent up to the bench. Because of the labor, intellectual property, and corporations work he did as a lawyer, many of the cases assigned to Goldstone were rather dry, complex commercial matters. Nonetheless, when cases came to Goldstone that dealt with laws designed to preserve apartheid, he managed to strike them down.

And judges in South Africa were then the only officials who had the
authority to visit prisons at any time to ensure that conditions were humane and that no mistreatment occurred. Few exercised that right; Goldstone, aware of the conditions imposed on blacks -- many of them political prisoners -- made these visits part of his job.

It was perhaps no surprise, then, that President DeKlerk asked Goldstone to conduct an investigation in 1990 into the shooting of several black demonstrators by police in the black township of Sebokeng. Goldstone's report castigated the police for firing without provocation and recommended they be prosecuted for murder. Ultimately, none were so prosecuted, but numerous damage suits were successfully brought against the policemen involved.

Two years later, Goldstone -- described by Bill Keller in a 1993 New York Times article as "perhaps the most trusted man, certainly the most trusted member of the white establishment, in a land of corrosive suspicion" -- was a natural choice to be chairman of what became the Goldstone Commission. It had an unlimited budget and broad powers to search and seize evidence, subpoena witnesses, and compel testimony about the sources of political violence in South Africa. Thrust into the limelight, Goldstone excelled. For three years he appeared almost daily on the TV news and the front pages of the papers, a reassuring presence in such turbulent times. "He is a household name in South Africa," says Capetown lawyer Carl Pohl.

The pressures from all sides were tremendous: The government hoped he would determine that the black political parties were responsible for the numerous killings wracking the townships; the ANC wanted him to blame the Inkatha Freedom Party and a "third force" of military and police officials who conspired to preserve white dominion by inciting black-on-black violence. Conservative Afrikaaner fringe groups just wanted him to fail in his inquiry. In fact, he received death threats early on, and a detail of security officers became his constant companion for the next two years.

But finding the culprits ended up a secondary concern for Goldstone; the commission's priority became venting away the explosive anger resulting from violence that continued even as the commission convened. If a killing occurred in a township, Goldstone and his police and investigators became the authority in charge. "It was an important safety valve," he says, "because investigators were on the scene immediately and evidence was heard within a week at times."

For the first year Goldstone's commission turned out unsurprising reports, essentially laying the blame on the two largest parties, Inkatha and ANC.
The turning point came in late 1992, says Goldstone, when he requested and received his own independent police force to conduct investigations he directed. Goldstone and his commission immediately made some shocking discoveries. In November 1992, for example, a bold raid he authorized turned up a secret section of the government's military intelligence division that used dirty tricks to undermine the political power of the African National Congress. Presented with incontrovertible evidence, De Klerk dismissed or suspended some 23 members of the clandestine group.

Finally, shortly before the elections last April, Goldstone discovered that some senior police and military officials, including a high-ranking general, had been selling arms to political factions, hoping to disrupt the armistice that the political parties had worked out prior to the elections. He rushed his report to the public, essentially forcing DeKlerk to address another embarrassing situation his appointee had created. The general refused to resign, but Goldstone would not back down, demanding that DeKlerk take action. In the end, DeKlerk suspended the general.

While the government and Inkatha seemed to receive most of the blame for the violence, everyone was faulted by the commission at one point or another. "The best indication of success was that we incurred the wrath of every party involved," deadpans Goldstone.

His colleague, Constitutional Court justice Johann Kriegler, assesses
Goldstone's commission work more charitably: "He played the political game as an outsider and had to walk a tightrope. But he is a surefooted
tactician, and he maintained his credibility with people on all sides. That
was damned difficult to do."

By mid-1994 the elections were complete and Goldstone had turned over the bulk of the commission's files to prosecutors to pursue further. It's worth noting that Goldstone maintained a full caseload as an appellate judge while he chaired the commission. His rationale reveals his practical, honorable approach to his fiduciary roles: He says he wanted to maintain his absolute independence and therefore took no pay for his role with the commission, but also felt that since he was collecting a full judge's salary, he should fulfill his duties in that arena as well.

Goldstone took a five-week vacation in Europe. When he returned, he was offered both the chief prosecutor's job at the war crimes tribunal for the former Yugoslavia and a position on South Africa's new Constitutional Court. Within a week, urged on by Nelson Mandela, he accepted the prosecutor's job. The high court position would be temporarily filled until he returned.

Not all his cohorts at the bench and bar agreed with his decision to go to work for some far-off tribunal. "I think it's a pity he took it," says
Capetown lawyer Pohl. "There's a hell of a lot of work to be done here."

But he is inarguably a good choice for the position: "He'll be breaking new ground over there," says Justice Kriegler. "He's an innovative, creative
lawyer, and I think he'll be good at that."

This article does not have permission of the copyright owner, but is
being offered for comment, criticism and research under the "fair use"
provisions of the Federal copyright laws.
Source: Court TV Casefiles (The American Lawyer is an affiliate publication of Court TV.) Copyright 1996 by American Lawyer Media, L.P.

Excerpts from the American Lawyer (Sept. 1996 issue) interview with Justice Goldstone by Senior Features Editor William W. Horne:
Bosnian Serb Dusko Tadic will be the first person tried by an international war crimes tribunal since Nuremberg. Court TV's Terry Moran recently interviewed Chief Prosecutor Richard Goldstone about the work of the International War Crimes Tribunal for the former Yugoslavia, the upcoming trial and the prospects for a permanent international criminal court. Here's an excerpt of the interview.

Question
Justice Goldstone, let me begin with a political question. Now that there is a precarious peace established in Bosnia, are the war crimes trials still important? Do they help or hinder the securing of that peace?

Justice Goldstone
I have no doubt that they can only help. It's very important to individualize guilt ... to indicate that, the atrocities that were committed; that were conceived of and executed by individuals and not by a nation or a people or a religious group; and, I can think of no better way of doing that than leaving evidence establishing or attempting to establish that these things were ordered by individuals.

Question
What do you say to the argument that they merely continued to rankle at the wounds that were opened in the civil war?

Justice Goldstone
Well the wounds are there ... And it's not a question of opening wounds.
They're open. And they're festering. And the only way to stop that festering is by truth and by justice and ... and it's the only way to start the healing process for victims and to avoid people demanding revenge and tacking them on to their own homes.

Question
So you don't see a conflict here between justice and peace?

Justice Goldstone
On the contrary. I think they're twins.

Question
How important is the (Dusko) Tadic trial to that goal?

Justice Goldstone
Well, I don't want to comment on the Tadic trial and it's coming before the court really very shortly. But any trials before this tribunal are important. Obviously Tadic has assumed a greater importance because at the moment, he's still the only person we've indicted who's here. So, it's important in that sense. But obviously there are more important people than Mr. Tadic who have been indicted and first prize will be to get them into the court.

Question
What if you can't? Is Tadic enough?

Justice Goldstone
Well, I'm fairly optimistic that other people are going to be appearing in court.

Question
Can you talk a little bit about Tadic? About why this indictment was brought? Just the background of the indictment.

Justice Goldstone
Well, the background to the indictment just really starts with the commission of experts under the chairmanship of Professor (Cherif) Bassiouni. I did a very complete and very useful investigation into the events in Prijedor and the death camps at Omarska, Trnopolje, in particular... before I was here ... when Graham Blewitt was the acting Deputy Prosecutor and ... and began to assemble investigate was they decided that that's where the first investigation should begin. And one of the people who was on the list of suspects, amongst a number of other people, was Mr. Tadic.
And after the investigation began, information was sent to the tribunal ...to this office by the German authorities to say that in fact Tadic should be arrested and have been identified. And having regard to the fact that he was an important suspect in an investigation that had already begun, the conclusion wasn't difficult to reach that this was a case that should be heard by the international tribunal and not left to the national courts of Germany. And that led to the furlough application and the transfer of Mr. Tadic by the German authorities to the tribunal.

Question
Talk a little about Omarska and Prijedor and why that was such an important place to begin in the indictments.

Justice Goldstone
Well, it was important in itself because of the scale and nature of the atrocities committed and the manner in which people were tortured and the manner in which people were murdered. And the way men and women were treated in those camps. So it was important on its own merits that, in addition, as I say, the signposts were provided for us by the report of the commission of experts.

Question
What difference does it make that Tadic is not a soldier? That he wasn't a regular soldier and that he's not a member of the army that was in charge of the situation?

Justice Goldstone
Well I think it's significant. It's not relevant to his culpability. We don't draw any distinction in that regard between military and political leaders. In terms of criminal laws, people who associate themselves with the commission of offenses, one doesn't have regard to what position they hold whether it was an official one, military or political.

Question
What's the law that you use to prosecute someone like Tadic or indict some other people involving this situation? What law do you rely on?

Justice Goldstone
We use the international humanitarian law which used to be called the Law of War. It's basically a body of law that's grown up over the last century in it's modern guise, aimed at protecting innocent non-belligerence in war. Innocent civilians; prisoners of war; also under our jurisdiction ... they can charge genocide in the crimes against humanity which don't require wars to be committed. This is really the reason why it's been renamed into National Humanitarian Law because it's really a coalition of aspects of a human rights law ... an aspect of genocide and crimes against humanity which are both an off-growth of Nazi atrocities of the second world war. And what preceded that which was the law of the Hague Convention ... the Geneva Convention ... which was more classically the law of war, but those are the laws which have been given to us by the security council as the basis of our jurisdiction.

Question
Is that jurisdiction inescapably political?

Justice Goldstone
No not at all ... I certainly don't see them as being political. They clearly have a political fallout. And that's inevitable when one's dealing in the sort of context in which we're dealing where nations and people have been at war. But I suppose even in a national situation, many trials are political in the sense that they have a political effect ... on ... the impeachment of a president is a legal proceeding. I don't think it's political in the sense that the decisions are not politically motivated. The decisions are not driven by political considerations. There's no political agenda. But it's obvious to a prosecutor in that situation that if you impeach the president, it's going to have tremendous political consequences, but that's no reason why it shouldn't be done. And no reason in any way impugn the process of being political.

Question
So how much has the political fallout affected your work here?

Justice Goldstone
Well, it hasn't affected any decisions we've taken. It hasn't affected who we investigate. It hasn't affected who we indict. It hasn't affected the timing of indictments.

We've done our work consciously and we have applied professional standards. We've tried to be as even-handed and unbiased and unprejudiced as it's possible to be. But obviously the perceptions are based on the order in which things happen. They started indicting Bosnian Serbs and we were accused of being anti-Serb. Had the first indictments been against Bosnian Muslims ... then I don't doubt we would have been accused of being anti-Muslim. When we started indicting Croats, we in some quarters in Croatia and the Croatian parts of Bosnia, the accusation was made that we'd suddenly become anti-Croat. So, it's one of the facts of life that one has to live with, but I think one has to be steadfast, and one has to go ahead and do the work to the best of our ability and hope that sensible, reasonable people will judge us at the end and not at the beginning or the middle of our work.

Question
What would you say then to Bosnian Serbs or Croats or Muslims who see a compatriot brought here like Tadic and put on trial? When they say he won't get a fair trial here, how can you assure then that he would?

Justice Goldstone
Well, the only way we can assure them is by seeing ... is by showing them and that's the important ground, I think, that you and the other media play. The only way to establish a fair trial is to have on. People won't accept words ... people want deeds and that's fair enough.

Question
Does he (Tadic) start at an automatic disadvantage though because he's the first defendant here? I mean, does that present special problems for the fairness of the Tadic trial?

Justice Goldstone
I wouldn't have thought so. I think, if anything, the contrary. I think the first trial is ... we're going to be feeling our way. The judges are going to be feeling their way. I think this is an unusual prosecutor's office in comparison to national prosecutor's offices and that we really are concerned to the fairness of the trial, certainly as much as the defense lawyers are.
We just cannot afford any of our proceedings to be judged by any of these people as being unfair. And we're going to be ... and that judgement is going to be made ... from many perspectives. Although it's an adversarial type of crime, it's fairness is going to be judged by nations and by lawyers and by commentators from countries who are not used to that form of proceedings. All the more reason that it's going to be very important to explain what we're doing and why are we doing it. And I have little doubt that the judges are going to feel equally obliged to be open and as forthcoming as possible in the decisions that are made.

Question
How about resources. Is there an imbalance of resources between your office and the United Nations and an individual defendant in this system?

Justice Goldstone
I certainly hope not. And we've certainly applied as much press as we can and successfully to ensure, for example, that Mr. Tadic's legal team is adequately resourced. Again, we can't afford unfairness to arise because of lack of resources. That would be a real unfairness. It's one of the justifiable criticisms of Nuremberg. And it would be very, very serious to the whole credibility of this process and to the future enforcement of international humanitarian law if there was a justified perception that accused people are being dealt with unfairly.
The whole thrust of the rules which the judges so painstakingly wrote for the tribunal has been predicated on equality. And the rules don't in any way favor the prosecutor. When it comes to discovery, disclosure of documents, disclosure of information, the whole thrust of the rules is to ensure equal treatment of defense and prosecutor.

Question
You mentioned Nuremeberg. Another criticism of Nuremberg was the quality of defense counsel. Are you confident in the confidence of defense counsel in the tribunal here?

Justice Goldstone
Yes, certainly in the cases that have so far come to the tribunal. There've been first-class lawyers appearing for the defense. And I don't want to talk about personalities. But it's something obviously we cannot control. And when I say we, I'm talking about the tribunal generally because to defend accused people ... defendants must be entitled to choose lawyers that they wish to choose. And if they choose the best, well they're going to get ... if they decide for any reason to choose less than the best, that's their privilege. That they shouldn't be saddled with second best because of lack of resources ... that's the least that the tribunal and the United Nations must ensure.

Question
The Nuremberg prosecutors relied primarily on documents to prove their cases. Your going to rely on witnesses. Compare that strategy a little bit?

Justice Goldstone
Well, it's not a choice. I think if prosecutors have guilt established in documents, above the signature of the defendants, obviously, it's more than any other prosecutor can do resist doing that. It means that trials can be bought quickly, can be short. On the other hand, the disadvantages ... there isn't the human element in it. You don't have witnesses, victims coming to court to the same extent and saying what happened and especially, you bear ... bear in mind that Nuremberg ... we're dealing with massive crimes involving many people. So there are advantages and disadvantages as in most important things in both those scenarios.

Question
Well, why is it important to have ... if you have the papers, which, as you point out, you don't, but why is it important to have the voice of the victims?

Justice Goldstone
Because people relate to individual stories. People don't relate to statistics, to generalizations. People can only relate and feel when they hear somebody that they can identify with telling what happened to them. That's something that any human being can relate to. And if you want to make an impression, if we're going to have any deterrent effect, that sort of impression that needs to be made.

Question
So one of the aims of the tribunal is to affect public opinion?

Justice Goldstone
That's the aim of any criminal justice system to ... to deter people from committing offenses.

QuestionThere may be another disadvantage that a defendant is at in a situation like the Tadic situation. His witnesses are still in Bosnia, for the most part. And the prosecution's witnesses available are because they're refugees. How about that situation?

Justice Goldstone
Well it shouldn't be a difficulty because one would imagine that the sort of witnesses who... somebody in the defendant's position would want to call will have the cooperation of local populations. In fact, it hasn't worked out quite that way in the case of Tadic because there's been a lack of cooperation or there has been, until recently, on the part of the Bosnian Serbs in giving his team access to witnesses, but I'm hopeful that that is being corrected. But witnesses are witnesses and, it will be to the prosecutor's disadvantage in the end if, for reasons beyond the control of a defendant, witnesses aren't available. If witnesses aren't available and there are witnesses in existence who can't be brought, any doubts that are created by the absence of the witness is going to make it more difficult for the prosecution to prove guilt beyond a reasonable doubt.

Question
Is it conceivable that in the first war crimes prosecution since the end of the second world war ... there would be an acquittal?

Justice Goldstone
Of course, that's conceivable. If there's an acquittal, it'll be only for one reason and that is because the prosecution hasn't proved its case. And if it hasn't proved it's case, then there should be an acquittal and certainly that's the way it should go.

Question
You don't think there would be tremendous political pressure and the
prestige of the international humanitarian law project to convict the first defendant?

Justice Goldstone
I don't look at it like that at all. I think that the purpose of this whole proceeding of the tribunal is to establish the truth. And there's a criminal standard which is guilt beyond a reasonable doubt and I wouldn't regard it as a failure at all if there was an acquittal. It would mean the system is working.

Question
How about the precedent that your work here and that the tribunal has or may have for the establishment of a permanent international criminal court. Is that a good idea?

Justice Goldstone
Well, there's clearly a direct relationship to the extent that this process is considered by the international community broadly speaking as being worth it. Being successful or partially successful ... to the extent that it may be considered a failure or a partial failure is obviously going to influence decisions that nations are going to take with regard to setting up a permanent court.

Question
There are five cameras in that courtroom. You touched on this a little earlier, and I wanted just to sound you out on it. Five cameras in the courtroom where the trials will take place. Why?

Justice Goldstone
Well I have no doubt that in any country and though this ... in an international court, the media is a partner in the whole criminal justice system. If people in the country are not told what their criminal courts are doing, then there's certain to be the deterrent aspect of criminal justice is going to fail. It's just not going to be there. And in earlier days, public trials were held ... executions were held in public. People who were found guilty were flogged in public. And the reasons for that being done ... punishments have to get round by word of mouth.
Today, fortunately, in my view for the criminal justice system, we have television; we have newspapers; we have radio. And people are told ... if the international community isn't told what we're doing here, and particularly if people in the countries where they are victims don't know what we're doing, there's no point in doing what we're doing.

Question
Let me ask about your pending departure (in October) here. Do you feel that to some degree, your work is done?

Justice Goldstone
Well, clearly the work of the prosecutor won't be done as long as the
tribunal continues to function. So the prosecutor's work isn't done. And I feel, and ... that may well be, talking myself into a position if you like, but I feel that the first phase of the tribunals for both Yugoslavia and Rwanda is coming to an end and that's the start for the offices ... setting a strategy for the prosecutor's office ... getting the rules working and the beginning of the trials.

Question
Much of the media and a lot of people have focused on the Bosnian war crimes tribunal. The Rwandan war crimes tribunal is starting up as well. Compare the two in importance, in significance.

Justice Goldstone
I think one must be careful not to be too myopic in a way. If one judges the question of interest from the press in most African countries, you will find that a lot more interest has been displayed in the Rwanda tribunal than in the tribunal for the former Yugoslavia. But that's saying the obvious. Often the obvious is missed because of one's perspective. Having said that, the Rwanda tribunal is certainly, in my view, as important as the tribunal for the former Yugoslavia. It's no less important for the victims, for international justice. I think it's particularly important in demonstrating that these sorts of atrocities can happen anywhere ... and on any continent, in any country, given the circumstances. I think it demonstrates in both areas and in others that haven't been covered unfortunately in my view by international tribunals.
The power of leadership and ... and how in my opinion, leadership is a tremendously powerful tool and can be used for good or evil. And what we're dealing with is are atrocities committed for political reasons by political leaders ... instigated by political leaders at various levels and the fact that one has a similar situation in Rwanda is I think a very important lesson for the whole of the international community.

Question
And do you think it possible that if these tribunals succeed, such a leader would actually think twice before launching a genocidal project?

Justice Goldstone
I think the probabilities are overwhelming that that's true. No criminal conduct in any national state and it's no different in ... again, in the international community ... no criminal conduct can be stopped without a criminal justice system ... without good policing and importantly without law enforcement. If you don't have law enforcement, your crime rate's going to soar.
In any national state and in the international community, if people ... if people know ... people in leadership positions, particularly, know that there's a court there ... that there's an international prosecutor and that the international community is going to act as an international police force, in respect of international war crimes, I just cannot believe that people aren't going to think twice as to consequences. Until now, they haven't had to. There's just been no enforcement mechanism at all.

Question
Have you ever thought you're tilting at windmills in a way to try to establish this?

Justice Goldstone
No, not at all because I think there's so many important aspects of this ...the fact that victims in Rwanda ... victims in the former Yugoslavia know that they haven't been ignored by the international community itself.
There's no forgetting quickly by the international community and brushing it under the rug. The educational aspect ... the fact that we're talking to each other about international war crimes would not remotely have happened without these tribunals being set up. The fact that the law of war in international humanitarian law is being taught and discussed at seminars and in classrooms ... to universities and probably in the majority of the countries of the world, things that wouldn't have happened but for these tribunals being set up. The fact that the whole debate on a permanent court is being taken up and is being taken more seriously and none of these things would have happened without this really brave action by the Security Council in setting up the two tribunals.